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Edited by Ben Depoorter, Peter Menell and David Schwartz
Michael W. Carroll
By design, copyright and patent law provide largely one-size-fits-all exclusive rights to inventors and authors. This policy creates the problem of uniformity cost, defined as the social cost attributable to the misalignment between the general level of exclusion provided by uniform rights and the specific level of exclusion that would be optimal with respect to any given author or inventor to both create and to commercialize their work. This chapter provides an explanation for the uniformity policy and the existing means of reducing uniformity cost through real options, flexible standards, and private ordering. It then discusses the conditions that would make tailoring intellectual property rights superior to uniform rights. It identifies the categories of economic evidence that would support specific tailoring interventions, which can be done through legislation, judicial interpretation, or administrative rules depending upon context.
Jorge L. Contreras
Despite their potential benefits, voluntary consensus standards have over the past decade become the subject of significant private litigation, regulatory enforcement and policy debate. Much of the current controversy centers on the perceived proliferation of patents covering standardized technologies, potentially abusive enforcement of such patents against manufacturers and users of standardized products, and the terms on which patent holders may be required to license the use of those patents to others. This chapter offers an overview of the empirical, legal and economic literature concerning the interaction of interoperability standards and standards-setting organizations with intellectual property rights (primarily patents, with attention to copyrights and trademarks as well).
As applied to the context of intellectual property thinking today, ‘the common law’ refers to a variety of different ideas, each of which contributes to a particular normative vision for the institution. These myriad understandings of the term in turn draw from different structural, institutional, and jurisprudential ideas that the common law has come to be associated with over the last several centuries. Accordingly, this chapter attempts to unbundle these different usages of the term in the law and economics of intellectual property in order to show what they each bring to the discussion. In particular, it examines the three dominant versions of the idea in the literature, which understand the common law as: (i) a method of lawmaking and legal reasoning; (ii) judge-made law; and (iii) state law. After examining these different strands in the legal literature it then connects them to relevant ideas and theories in both general law and economics, as well as the law and economics of intellectual property.
Arti K. Rai and Saurabh Vishnubhakat
The post-grant administrative review of patent validity set up at the U.S. Patent and Trademark Office’s Patent Trial and Appeal Board (PTAB) by the America Invents Act of 2011 has transformed the relationship between Article III patent litigation and the administrative state. This chapter reviews scholarly literature that has made the case for such review and presents basic data on the functioning of several predecessors to the PTAB. It also reviews the empirical literature on the PTAB’s functioning, focusing on literature that falls into one of four categories: (1) basic descriptive statistics; (2) the intersection with district court litigation, including across different technology areas and different courts; (3) the impact of the PTAB on non-practicing entities; and (4) comparisons of patent and patent-examination characteristics between patents challenged at the PTAB and a matched sample that was not challenged. The chapter concludes by setting forth a research agenda
Kal Raustiala and Christopher Jon Sprigman
The law and economics of intellectual property (IP) has long rested on a foundational, if implicit, premise: that IP law is best understood by studying how legal rules operate in actual markets for creative work. Yet this way of thinking about IP leaves open a host of important and fascinating questions. Can innovation flourish in the absence of IP protection? Can market incentives, psychological factors, social norms, first-mover advantages, or any number of other factors, serve as whole or partial substitutes for IP rights? In this chapter, we explore IP’s ‘negative space’—that is, those creative and innovative fields that, for historical, doctrinal, or other reasons are not addressed by IP law—and the scholarship that has begun to illuminate it. This literature is barely more than a decade old, but already it has shaped how scholars today think about IP. In particular, it shows that the link between IP and creative incentives is more conditional and contested than many believe.
Patents and Innovations for Growth and Welfare
The aim of this ending chapter is to present a structured summary of the previous chapters and tie them together through lingering on some cross-chapter themes and contributions in view of the aims of the book. Some of the main themes in this book at macro-level will moreover be tied into a previous book of mine 20 years back (as of April 2018) on the rise of intellectual capitalism and the economics and management of IP at micro-level. The chapter will end with a final plea for transnational technology and innovation governance in light of the crucial roles of new technologies and innovations and for global challenges and welfare. The general aim of this book has been to present a research-based analysis of the linkages between R & D, patents, innovations, growth and welfare and thereby increase our knowledge about how R & D of new technologies and innovations can contribute to growth and ultimately to welfare in society. A corollary aim has then been to focus specifically on patents and their linkages since patent and IP issues have been somewhat disconnected in general from R & D, innovations and economic growth in studies and debate of the latter. A subsidiary aim has been to clarify and offer a number of key concepts, distinctions and models in an attempt to contribute to a professional language in the innovation policy and management area. A final aim of the book has been to contribute to research in the innovation and IP area by offering some answers to common research questions as well as offering methods and suggestions for further IP policy research.